Supreme Court Roundup; A Property-Rights Claim Meets Resistance

By LINDA GREENHOUSE

Published: January 8, 2002

WASHINGTON, Jan. 7—
Advocates of property rights have been on a winning streak at the Supreme Court for the last 15 years or so as the court, by narrow majorities, has expanded the categories of land-use regulation for which the government must compensate property owners.

But it appeared during an argument at the court today that the property-rights side might have finally overplayed its hand.

A lawyer representing hundreds of owners of residential building lots at Lake Tahoe ran into resistance to his argument that a three-year building moratorium imposed by the Tahoe Regional Planning Agency amounted to a ''taking'' for which the owners were constitutionally entitled to compensation. Most new development has been frozen because of concerns that the lake, on the California-Nevada border, is losing its crystalline clarity.

The planning agency, a bistate organization created by Congress in 1969, stopped all development for 32 months in 1981-84 to study the environmental problems in the 500-square-mile Lake Tahoe basin and come up with a long-range development plan. Very little development has been permitted since then, but for procedural reasons the case before the Supreme Court today concerned not the continuing restrictions but only the original 32 months.

The federal appeals court in San Francisco, ruling in June 2000, rejected the landowners' claim to compensation for the diminished value of their property, saying that ''temporary development moratoria promote effective planning'' and should not be placed within the constitutional definition of a taking. The takings doctrine is based on the Fifth Amendment's provision that private property shall not ''be taken for public use without just compensation.''

''These people are being asked to make a sacrifice on behalf of the greater public good,'' Mr. Berger said. ''It's part of a public project to have this freeze on use, and the public ought to be paying for it, not the owners who are frozen out.''

Some justices who were probably inclined to agree with Mr. Berger as an abstract matter were nonetheless openly troubled by the practical implications of his argument. Justice Anthony M. Kennedy asked whether New York City would have to compensate the owners of the World Trade Center site if the city froze development there for a year in order to come up with a plan.

If all use of the property were prohibited, even temporarily, that would be a taking, Mr. Berger replied. But he seemed to back away from that categorical position when he tried to assure the justices that his position would not convert into a taking every temporary delay that a property owner must endure while seeking a building permit under ordinary zoning laws.

The distinction depended on the purpose of the regulation, he said. The purpose of the moratorium his clients faced was ''to prohibit use,'' while the purpose of ordinary zoning regulation is ''to enable use,'' he explained.

Justice John Paul Stevens objected that the distinction between the two forms of temporary land use prohibition was not so clear.

''Your dividing line depends on what's going to happen after the temporary period expires,'' Justice Stevens told Mr. Berger, adding, ''Your test turns entirely on an evaluation of the future.''

Mr. Berger, who won an important takings case before the court in 1987, had an extra burden this time in the form of the legal talent arrayed against him, two lawyers with impeccable conservative credentials who argued for upholding the appeals court's decision. John G. Roberts Jr., a Washington lawyer whose nomination to the federal appeals court here is before the Senate, represented the Tahoe Regional Planning Agency, and Theodore B. Olson, the solicitor general, placed the federal government on the agency's side in this case, Tahoe-Sierra Preservation Council Inc. v. Tahoe Regional Planning Agency, No. 00-1167.

''This was government acting the way we want it to act,'' Mr. Olson said of the agency's approach, which he characterized as ''before we destroy the lake, let's stop and solve the problem that every landowner wants to solve.''

Justice Antonin Scalia, a leader of the court's property-rights faction, objected that ''this was a general social problem for which the entire society should pay.''

''They're preserving the lake for all citizens,'' Justice Scalia added. ''Why should some individuals bear the burden?''

Mr. Roberts, arguing for the agency, said the property owners were making the far-reaching argument that the ''mere enactment'' of the moratorium amounted to a taking, without any consideration of the reasons for it or its actual impact. The court's precedents required an individual inquiry rather than a categorical declaration, he said.

These were among other developments at the court today:

Nichols Appeal

Without comment, the justices turned down a challenge by Terry L. Nichols to his pending state trial on capital murder charges. Mr. Nichols was convicted after a 1997 federal trial for his role in the bombing of the federal office building in Oklahoma City. He argued that the second trial would violate his constitutional right against double jeopardy.

Under the Supreme Court's precedents, which the Oklahoma Court of Criminal Appeals invoked in rejecting his challenge, the double jeopardy prohibition does not apply to consecutive prosecutions by the federal government and a state government, which are regarded as ''separate sovereigns.''

Mr. Nichols was sentenced to life in prison without parole for his role in murdering the federal law enforcement agents who were among the 168 people killed at the Alfred P. Murrah Federal Building on April 19, 1995. At his state trial, which has not yet been scheduled, he faces first-degree murder charges for which he can receive the death penalty. Timothy J. McVeigh, convicted in federal court of delivering and detonating the truck bomb that destroyed the building, was executed last June 11.

A Rehnquist Anniversary

Justice Stevens, speaking as the court's senior associate justice, congratulated Chief Justice William H. Rehnquist on the 30th anniversary of his swearing-in. Appointed by President Richard M. Nixon, he served as an associate justice for 14 years before President Ronald Reagan named him chief justice in 1986.

''In a different setting, I would propose a toast to you,'' Justice Stevens said from the bench before the start of arguments this morning, ''but here I shall merely express our thanks for your 30 years of dedicated service to our country.''